October 2012 Bar Bulletin
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October 2012 Bar Bulletin

Legislation "By the People:" Is the Ballot Initiative System Broken?

By Beth Barrett Bloom and Johanna Coolbaugh


A public service opportunity and call for volunteers

"Insanity [is] doing the same thing over and over again and expecting different results."
Albert Einstein

The November election is just around the corner. Once again, we voters will decide a dizzying number of policy issues presented through ballot initiatives and referenda.

This year, voters will consider measures related to marriage equality, legalization of marijuana, and the authority of state legislators to balance the budget by raising taxes, among others. Critics condemn our system as "democracy for sale," pointing to the millions of dollars spent supporting and opposing ballot measures. Others argue that voters simply lack the information necessary to make informed voting decisions. Supporters defend the right of the people to make their own laws.

By now, we also know what to expect after the election. Winners will cheer. Losers will exhale. The familiar debate concerning ballot measure reform will die back down as the season's election battles fade from memory. Then next year at this time, we'll take up the same arguments and be right back at it again.

Members of the KCBA Public Policy Committee recently posed a simple question: What if the legal community came together to create a sustained dialogue aimed at improving — once and for all — our initiative and referendum system? KCBA members are now forming an Initiative and Referendum Reform Steering Committee with the aim of developing nonpartisan efforts to improve our ballot measure system.

No one claims reform will be easy. Washington and other states have attempted several different methods of reform in the past, with varying success. For example, efforts to limit the payment of signature gatherers or to require proof of residency have largely been struck down as unconstitutional.1 Courts have overruled laws requiring that signatures come from a wide swath of the state's population, rather than just one area of the state.2

Some states have prohibited substantially similar ballot measures from reappearing on the ballot year after year. These laws create a waiting period (typically two years) before a measure rejected by the voters may be presented again.

By contrast, in 2010 Washington voters approved Initiative 1053, which requires a two-thirds vote by the Legislature to raise taxes. In May, King County Superior Court Judge Bruce Heller overturned the law as unconstitutional.3 The case is up on appeal, but in the meantime Tim Eyman's I-1185 will present the issue to the voters again this November.

Oregon recently adopted a Citizen Initiative Review panel to publicly evaluate ballot measures and provide more information to the voters after a hearing process. The citizen panels provide written opinions evaluating an initiative's strengths and weaknesses after considering the evidence. Would Washington benefit from such a system?

Watchdog groups criticize Washington's ballot measure system as one of the "most arcane" in the nation. Critics have called for more transparency, less fraud and more accountability. One thing is certain, ballot initiatives and referenda remain popular in our state. Twenty-seven states authorize citizen initiatives. Washington ranks fourth among these states in the frequency and number of ballot measures presented to voters.

No matter your view on Washing­ton's ballot measure system, initiatives and referenda appear to be a fact of life. KCBA members are working together to kick-start a dialogue within the legal community. Plans include evaluating nonpartisan efforts to improve our ballot measure system, drafting a scholarly report, sponsoring public education efforts and making recommendations for lawful reform.

If you'd like to participate as a member of the steering committee for this new effort or have questions/comments, please contact KCBA Exe­cutive Director Andrew Prazuch by email (andrewp@kcba.org) or phone (206-267-7061), or just plan to attend an organizational meeting on Monday, October 29, from noon to 1 p.m. at the KCBA offices, 1200 Fifth Ave., Suite 600. A light lunch will be provided.

Beth Barrett Bloom is a past trustee of KCBA and a member of the KCBA Public Policy Committee. She practices employment law and is a partner at Frank Freed Subit Thomas LLP in Seattle.

Johanna Coolbaugh is a past chair of the KCBA Young Lawyers Division and a member of the KCBA Public Policy Committee.  She is an associate at Karr Tuttle Campbell where she focuses on tax, trusts and estates.

1 See Meyer v. Grant, 486 U.S. 414 (1988); Victory Buckley v. American Const. Law Foundation, 525 U.S. 182 (1999).

2 ACLU v. Lomax, 471 F.3d 1010 (9th Cir. 2006) (finding that Nevada's "13 counties rule" was unconstitutional).

3 Order Granting Plaintiff's Motion for Summary Judgment and Denying Defendant State of Washington's Motion for Summary Judgment, King County Superior Court Cause No. 11-2-25185-3, Hon. Bruce E. Heller, at 3 (May 30, 2012).


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